Ninia BAEHR, Genora Dancel, Tammy Rodrigues, Antoinette Pregil,
Pat Lagon, Joseph Melilio, Plaintiffs-Appellants, 
                                       v. 
    John C. LEWIN, in his official capacity as Director of the
Department of Health, State of Hawaii, Defendant-Appellee. 
                                   No. 15689. 
                            Supreme Court of Hawaii. 
                                  May 5, 1993. 

Before MOON, Acting C.J., LEVINSON, J., Intermediate Court of Appeals Chief Judge BURNS, in place of LUM, C.J., Recused, Intermediate Court of Appeals Judge HEEN, in place of KLEIN, J., recused, and Retired Justice HAYASHI, [FN*] Assigned by Reason of Vacancy.

BURNS, J., concurring.

I concur that the circuit court's October 1, 1991 order erroneously granted the State's motion for judgment on the pleadings and erroneously dismissed the plaintiffs' complaint with prejudice. My concurrence is based on my conclusion that this case involves genuine issues of material fact. "Constitutional and other questions of a large public import should not be decided on an inadequate factual basis." 6 J. Moore and J. Lucas, Moore's Federal Practice, s 56[10] (2d ed.1982) (citation omitted).

The marriage at issue in this case is the marriage specifically authorized by Hawaii's statutes. My label for this marriage is the "Hawaii Civil Law Marriage." The issue is whether the Hawaii constitution permits the State to discriminate against same-sex couples by extending the right to enter into a Hawaii Civil Law Marriage to opposite-sex couples and not to same-sex couples.

The Hawaii Constitution mandates, in article I, section 3, that "[e]quality of rights under the law shall not be denied or abridged by the State on account of sex." It also mandates, in article I, section 5, that "[n]o person shall be ... denied the equal protection of the laws, ... or be discriminated against in the exercise thereof because of ... sex[.]" Thus, any State action that discriminates against a person because of his or her "sex" is subject to strict scrutiny.

As used in the Hawaii constitution, to what does the word "sex" refer? In my view, the Hawaii constitution's reference to "sex" includes all aspects of each person's "sex" that are "biologically fated." The decision whether a person when born will be a male or a female is "biologically fated." Thus, the word "sex" includes the male-female difference. Is there any other aspect of a person's "sex" that is "biologically fated"? In March 1993, the Cox News Service reported in relevant part as follows:

The issue of whether people become homosexuals because of "nature or nurture" is one of the most controversial subjects scientists have confronted in recent years.

* * *

Until the middle 1980s, the prevailing view among most scientists was that homosexual "tendencies" were mostly the result of upbringing.

* * *

Later, researchers at the Salk Institute in San Diego found anatomical differences between homosexual and heterosexual men in parts of the brain noted for differences between men and women.

Theories gravitate to the role of male sex hormones. The Honolulu Advertiser, March 9, 1993, at AB, col. 1.

In March 1993, the Associated Press reported in relevant part as follows:

   CHICAGO--Genes appear to play an important role in determining
whether women are lesbians, said a researcher who found similar
results among gay men. 
                                       * * * 
   "I think we're dealing with something very complex, perhaps the
interaction between hormones, the environment and genetic
components," [Roger] Gorski [an expert in biological theories of
homosexuality] said yesterday. 
                                       * * * 

• *24 The Honolulu Advertiser, March 12, 1993, at A-24, col. 1.

  On the other hand, columnist Charles Krauthammer reports as follows:

  It is natural, therefore, that just as parents have the inclination and right to wish to influence the development of a child's character, they have the inclination and right to try to influence a child's sexual orientation. Gay advocates argue, however, that such influence is an illusion. Sexual orientation, they claim, is biologically fated and thus entirely impervious to environmental influence. Unfortunately, as E. L. Pattullo, former director of Harvard's Center for the Behaviorial Sciences, recently pointed out in Commentary magazine, the scientific evidence does not support such a claim....

  * * *

  The Honolulu Advertiser, May 2, 1993, at B2, cols. 3, 4 and 5. If heterosexuality, homosexuality, bisexuality, and asexuality are "biologically fated[,]" then the word "sex" also includes those differences. Therefore, the questions whether heterosexuality, homosexuality, bisexuality, and asexuality are "biologically fated" are relevant questions of fact which must be determined before the issue presented in this case can be answered. If the answers are yes, then each person's "sex" includes both the "biologically fated" male-female difference and the "biologically fated" sexual orientation difference, and the Hawaii constitution probably bars the State from discriminating against the sexual orientation difference by permitting opposite-sex Hawaii Civil Law Marriages and not permitting same-sex Hawaii Civil Law marriages. If the answers are no, then each person's "sex" does not include the sexual orientation difference, and the Hawaii constitution may permit the State to encourage heterosexuality and discourage homosexuality, bisexuality, and asexuality by permitting opposite-sex Hawaii Civil Law Marriages and not permitting same-sex Hawaii Civil Law Marriages.

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